Zango tries, fails to sue its way out from under the “spyware” label

A federal judge has just ruled that security vendors are allowed to treat any …

Spyware vendors don't like being called "spyware vendors." Understandable, really, since spyware is given about as much positive coverage in the press as pedophilia. Some companies, such as Zango, have even resorted to suing security vendors over their decisions to block or remove Zango. Now, a federal judge tells Zango that it "misread" a key statute, and security vendors can target any program that they like.

It has not been a good week for Zango (formerly 180solutions). First, the company dropped a lawsuit against Australian software vendor PC Tools. Though Zango attempts to paint this as a victory, PC Tools claims it was vindicated by the move.

Now, the same Washington court that presided over that case has handed Zango a smackdown in another suit, this one against Kaspersky Lab. Zango was upset that Kaspersky applications were in some cases blocking the installation of its software, and it accused Kaspersky of trade libel, unjust enrichment, and more. Unfortunately for Zango, the court has just dismissed the entire case.

The basis for the court's ruling was the Communications Decency Act, which contains a "safe harbor" provision in Section 230. The law provides protection for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, and harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

The judge in this case found that Kaspersky was in fact an "interactive computer service," in part because Kaspersky software regularly communicates with Moscow-based servers to grab updates. Once that decision was made, Kaspersky qualified for the safe harbor, and Zango's fate was sealed.

Although the company tried to argue that it was not, in fact, offering objectionable material, the judge pointed out what the law says: namely, it is up to the user or the service provider to determine what is or is not objectionable. Zango's argument, noted the judge, "is based on a misreading of the statute."

In other words, if Kaspersky wants to block something, and the user wants to let Kaspersky do its business, Zango has no cause for complaint.

The ruling should continue to give security vendors broad discretion in determining what is and what is not malware, and it will make it much harder for companies like Zango to bring such suits in the future.

Further reading:

Law professor Eric Goldman has been covering the case and provides access to the ruling for those without federal PACER access